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The Bishops v. Birth Control: It’s Not About the Money

11:45 am in Uncategorized by RH Reality Check

Birth control pills

Religion, birth control, and Obamacare — it’s not about the money.

In announcing its final rule concerning the Affordable Care Act’s guarantee of access to birth control without a co-pay for all American women—including the Catholics and non-Catholics who work in religiously sponsored schools, hospitals, and social service agencies—the Obama administration bent over backwards to accommodate the Church’s concerns. The goal was to spare Church fathers from the anguish of getting their pristine hands dirty by, as the Bishops charged, being forced to sell, buy or broker birth control coverage for women, including students. The final rule allows that either the insurance company used by the institution—or, if it is self-insured, its plan administrator—will have to pay, with reimbursement coming through a series of convoluted steps.

In a repeat of the Church battle over the Affordable Care Act, Sister Carol Keehan, head of the Catholic Health Association, last week publicly approved the administration’s final rule, issuing an explanation for the association’s members about how to implement it. Not so the U.S. Conference of Catholic Bishops. The week before, its head, Cardinal Timothy Dolan, released his statement expressing dissatisfaction with the compromise, saying that the bishops are subjecting it to further “analysis,” feel their “religious freedom” is still under threat, and plan to continue “defending our rights in Congress and in the courts.” Count on the 60+ lawsuits by Catholic diocese and universities around the country, joined by secular employers who also don’t like birth control and want to exclude it from their insurance policies, proceeding apace.

It is maddening that the Administration had to go to such extremes to placate the Church fathers, who dare to put “moral” and “money” as it applies to this deeply compromised institution in the same sentence. How pure, really, were the hands of the Church fathers who began decades ago to secretly spend millions of dollars in hush money to silence child victims of clergy rape and sodomy, and rid themselves of the evidence of their paternal crimes? Hush money that came from the faithful in the pews, who paid for all those ever-escalating insurance premiums, and from selling the churches and schools out from under those same working-class Catholics? The victims merited all the compensation they got and more, but the Church fathers literally stole that money from the Catholics they served and lied about it.

When the Bishops realized how much money they had to lose by even these secret settlements, hiding the goods from the victims became the next best strategy. So how pure, really, are the hands of Cardinal Dolan, the leading voice claiming the moral high ground in the battle to keep any of the church coffers from supporting birth control for women? Files just released by the Roman Catholic Archdiocese of Milwaukee turned up a letter showing that when Dolan served as the Archbishop of that diocese, he secretly and successfully, and even as the Archdiocese was preparing to file for bankruptcy, petitioned the Vatican to bury nearly $57 million in a cemetery trust fund in order to protect those assets “from legal claim and liability,” aka, child abuse victim compensation. And this was on top of his paying off some priest child sex abusers $20,000 a piece to leave the priesthood, reportedly defended by Dolan in one case as “an act of charity,” so that, irony of ironies, the priest “could pay for health insurance.”

And how pure, really, are the hands of the Church fathers regarding money when we look at the shenanigans at the Vatican bank? Still laughably named the “Institute for the Works of Religion,” the Vatican Bank is literally drowning in mounting accusations of money laundering and mobster connections. Most recently, Monsignor Nunzio Scarano, an accountant for the Administration of the Patrimony of the Apostolic See, which manages the Vatican’s property and investments (and a Vatican account-holder himself), was arrested and charged with conspiring to transfer some $26 million from Switzerland to Italy to dole out to his rich friends.

Given this sad financial state of affairs, how does paying for a health service like birth control for women become such a threat to Church fathers that they’ve made a major campaign out of it?

The bishops claim this mandate violates church teaching that artificial birth control is “intrinsically evil, “despite the fact that nearly 100 percent of Catholics don’t believe there is anything “intrinsically evil” about birth control and use it. The bishops claim birth control is the same as abortion; it isn’t. They claim to be protecting the institution’s “conscience,” thereby stepping all over Catholic Church teaching that defines conscience as “the most secret core and sanctuary” of a person, not an institution, and the Church not as the “men of God” but as “the people of God,” which would seem to include women. They claim the money at issue is “their” money, even though employees earn their health insurance as part of their compensation package, and many have to contribute to or pay the full amount of their health insurance premiums so this is at base a labor issue. And their claim that birth control is not a “health” service, in the face of current scientific knowledge and medical opinion, is tantamount to insisting that the sun revolves around the earth.

A hint of a far deeper motivator lies in a rarely regarded passage from Humanae Vitae, Pope Paul VI’s 1969 Encyclical letter, “On the Regulation of Birth,” which cemented the Church’s current intransigent opposition to birth control. The section on “Grave Consequences on Methods of Artificial Contraception” reads in part:

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The Bishops’ Lawsuit: A Colossal and Purposeful Drain on Public Funds

1:09 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

stack of papers

Government lawyers filed an emergency motion to dismiss lawsuit over contraceptive coverage mandate citing exorbitant costs in responding to document requests.

This week, the government filed an emergency motion in the New York Archdiocese’s lawsuit against the contraceptive coverage mandate, requesting that the court halt proceedings and dismiss the case. The emergency is that the government is hemorrhaging money defending a regulation it will never enforce against the Archdiocese.

Roman Catholic Archdiocese of NY v. Sebelius is the only lawsuit out of the 23 brought by religiously affiliated organizations not to be dismissed at the district court level for lack of standing or ripeness. The cases have been dismissed because religiously affiliated non-profits are currently completely exempt from the contraceptive coverage requirement. They enjoy a one-year safe harbor period provided for the religious accommodation to be finalized. If you haven’t been injured, you can’t sue.

The government swore up and down from the day the case was filed that the rule in its current form would never be enforced against the Archdiocese and its co-plaintiffs and that a new rule with a new religious accommodation was on the way. As promised, the Obama administration released a new proposed rule, is now reviewing comments from the public on it, and will release the final rule by August. However, in the New York Archdiocese case, Judge Brian M. Cogan found that the administration’s assurances were not enough and that the impending threat of the rule was injury enough for the plaintiffs to proceed.

The Archdiocese et al. proceeded to serve the government with requests for every document under the sun. “Discovery” is the process in which litigating parties get evidence by requesting relevant documents from each other. To respond to a document request, a party has to review documents to determine whether they are responsive to the request and make a log of documents that are responsive but won’t be turned over because they are protected by attorney-client or another privilege. Computer searches only get you so far; a human attorney or paralegal has to determine if a document is responsive or privileged.

Plaintiffs in these cases being 1 for 23, the Archdiocese may have sought to make the most of its unique situation. It made discovery requests the government calls “enormously burdensome and irrelevant.” The Archdiocese also noticed a deposition of Health and Human Services (HHS) Secretary Kathleen Sebelius. Lawsuits are brought over regulations all the time — it is pretty audacious to demand a cabinet member show up in person for yours. That was indeed too far, and Judge Cogan granted Sebelius a protective order.

The plaintiffs didn’t stop there. The Archdiocese subpoenaed the Executive Office of the President (EOP), even though it isn’t a party to the lawsuit, many of the requested documents are protected by various privileges, and you must have an extra good reason to get documents from the president. Also, the EOP being in D.C., the subpoena was issued in a district that has thrown out three of these 23 lawsuits for lack of jurisdiction.

The Archdiocese later withdrew the subpoena. We don’t know why. Perhaps it realized it was an unreasonable request. This did not happen, alas, until after our tax dollars were put to work on a very lengthy motion to quash the subpoena. But whatever that cost, it pales in comparison to the expenditures of various agencies on the New York document requests; in the emergency motion, the government estimates completing the requested document production would take eight years and cost over $10 million.

We should take that estimate with a grain of salt, of course, but the government has sought to back it up. Attached to the emergency motion are declarations from officials of various offices and agencies as to what they have spent so far on this one case and what they estimate it will cost to finish. Two-hundred HHS employees have spent have spent over 2,000 hours and located over 7.6 million pages of potentially responsive documents so far. That has cost over $177,000. Those documents haven’t been reviewed by HHS or their Department of Justice counsel yet. The Internal Revenue Service has spent over a quarter of a million dollars.

The lawyers, paralegals, and IT professionals needed to complete discovery are expensive — even those of the lower-paid government variety. Offices that don’t have enough staff for this have hired contract lawyers, but they can’t afford to do that anymore because of the sequester. Lest you think it’s not a big deal to have government lawyers tied up or that the effect is minimal in the scope of things, consider one example contained in the declaration from the Department of Labor (DOL). The DOL’s Plan Benefits Security Division investigates and litigates cases of fraud or mismanagement in employee benefits. The division, which recovered $1.38 billion for U.S. workers in 2011, argues that the impact on the public interest of putting its attorneys on document review will be far greater than the financial loss.

The Archdiocese, which employs 10,000 people in programs receiving many millions of dollars in government grants each year, will never have to provide health plans with contraceptive coverage under the rule as proposed. Despite this, it is waging a legal battle that is imposing significant costs on the taxpayers who fund its work. And this is only one lawsuit. With the additional cases brought by secular for-profit corporations, over 60 lawsuits have been filed in this scorched earth litigation campaign — which we have to pay to defend.

On the same day the emergency motion was filed, Judge Cogan granted it in part, staying all discovery and proceedings until the contraceptive coverage rule is final. So the government lawyers can get back to other business for the moment. But once the rule is final, I expect we will see that some if not all of those 22 dismissed cases (the ones that haven’t already been appealed) will be refiled.

Back in February, with the sequester looming, the U.S. Conference of Catholic Bishops, which, like the Archdiocese of New York, is led by Cardinal Timothy Dolan, signed a statement by religious leaders urging legislators to protect the interests of the poor. The Bishops’ litigiousness does not reflect the same awareness of our limited resources nor concern for those who will be hurt most by the sequester. Instead, the Archdiocese seeks to deprive its employees of affordable contraception — provided by an outside company — that will enable employees to limit their families to the size they want and can support, using up resources that are needed elsewhere in a time of economic distress.

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